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[2015] ZAFSHC 86
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V v T (325/2015) [2015] ZAFSHC 86 (9 April 2015)
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Certain
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FREE STATE
HIGH COURT, BLOEMFONTEIN
REPUBLIC OF
SOUTH AFRICA
Case No. : 325/2015
In the matter
between
C[...]
S[...] V[...] S[...]
…......................................................................................................................
Applicant
and
J[...]
H[...] T[...]
…............................…............................................................................................
Respondent
HEARD
ON:
26
FEBUARY 2015
DELIVERED
ON
:
9
APRIL 2015
MOCUMIE J.
[1] On 26 February
2015 this application was heard first on an urgent basis and upon the
parties agreeing on a postponement it ran
its normal course. On the
next appearance, I granted the relief sought without providing any
reasons and handed down the order
which reads as follows:
“
ORDER
[As amended]
1. Subject to the
rest of this order, both parties have full parental responsibilities
and rights in respect of the minor children
as contemplated in
section 18 of the Children’s Act 38 of 2005 (viz. care,
contact, guardianship and maintenance).
2. The primary
residence and primary care of the minor children is awarded to the
applicant as contemplated in section 18(2)(a)
of the Children’s
Act 38 of 2005 subject to the condition set out in para 6 of this
order.
3. Specific parental
responsibilities and rights with regard to contact with the minor
children, as contemplated in Section 18(2)(b)
of the Children’s
Act 38 of 2005 are awarded to the respondent in the following manner:
3.1 The respondent
to have contact with the minor children on alternating weekends (if
ever possible) upon travelling to Luderitz,
Namibia, and to take them
with him within the borders of Namibia from Friday 15h00 to Sunday
15h00.
3.2 The respondent
to have contact with the minor children on alternating long and short
school holidays in South Africa, with Christmas
alternating between
the parties. In particular respondent to have contact with the
children in August/September long school holidays
(2015), Thereafter
August/September long school holidays to alternate between the
parties every second year.
3.3 The respondent
to have daily contact with the minor children on Skype or available
telephone or other applicable social media
and by all other means
mentioned in section 1 of the Children’s Act 38 of 2005.
4. It is ordered
that the children’s passports be endorsed so as to allow travel
only between Namibia and South Africa.
5. It is directed
that the International Social Services (ISS) in Namibia monitors the
adjustment of the chifdren in Luderitz, in
compliance with this court
order, ensure referral of the children to a professional
psychologist, only if necessary and critical;
and to provide the
respondent, through his attorney (Honey attorneys, Northridge Mall,
Kenneth Kaunda Street, Bloemfontein 9300),
with feedback on the
children’s adjustment and progress every six months in the
first year (2015) and thereafter once every
year.
6. It is ordered
that the applicant must, within 14 days of the date of this order,
launch proceedings and pursue them with due
diligence to obtain a
mirror order from the appropriate Namibian court in the same terms as
this court order.
7. A copy of this
order shall forthwith be transmitted by the Family Advocate
(Bloemfontein, Free State) to International Social
Services in
Namibia.
8. Each party to pay
its own costs in this application.
9. The respondent to
pay the costs of the postponement of the application occasioned on 26
January 2015.”
The reasons follow.
[2]
The applicant and the respondent are both South African citizens.
They were married in 1999. Out of their marriage two minor
children
were born. They were divorced by this court in 2014. Upon the
dissolution of the marriage, this court, with the agreement
of
respondent
1
and
based on an investigation by the Office of the Family Advocate,
granted applicant primary residence and care of the minor children
and contact rights to respondent. The children are 6 years and 3
years respectively.
[3] In December
2014, applicant, through her attorney, informed respondent that she
was marrying a man of Namibian citizenship and
was relocating with
him to Namibia. She simultaneously applied to this court to grant her
permission to remove the children from
its jurisdiction and relocate
with them to Namibia. Following the order that I will refer to in
detail hereafter, she went to Namibia
with the minor children and by
January 2015 enrolled them in schools in Namibia.
[4] The order of
this court granted on 8 December 2014, reads:
“
1.
Die aansoek word uitgestel na 29 Januarie 2015.
2. Die
Gesinsadvokaat word versoek om voor of op die 29ste Januarie 2015 ‘n
verslag voor te berei oor die versorging van die
minderjarige
kinders.
3. Die partye
gesamentlik ‘n sielkundige soos aangewys deur die
Gesinsadvokaat te Namibië aanstel om die omstandighede
van die
applikante, haar eggenoot, die aanpassing van die kinders in Namibië
en hulle skool te ondersoek en elkeen gesamentlik
aanspreeklik is vir
die koste van die sielkundige.
4. Sodanige verslag
soos uiteengesit in paragraaf 3 hiervan aan die Gesinsadvokaat van
hierdie Agbare Hof beskikbaar gestel moet
word.
5.
Verlof
word verleen in terme van Artikel 18(5) van die Kinderwet, 38 van
2005
aan appiikante om die partve se minderiariqe kinders te verwvder
uit
die Republiek van Suid-Afrika na Luderitz Namibië vanaf die
24ste
Desember
2014 en dat sodaniqe verlof slegs verleen word tot en met die
29ste
Januarie 2015.
6. Die respondent
geregtig sal wees om die minderjarige kinders met hom te neem vir die
vakansieperiode vanaf 12 Desember 2014 tot
en met 24 Desember 2014.
(My own emphasis)
7. Die koste
oorstaan om bereg te word vir latere beregting.”
[5]
Pending an investigation by the Family Advocate, Bloemfontein and the
relevant authorities/persons in Namibia, applicant enrolled
the
children into a preschool and primary school in Namibia. When it
became clear that the Family Advocate investigation and report
would
not be available on the return date, 29 January 2015, applicant
sought indulgence from respondent for the matter to be postponed.
Respondent refused to give such indulgence. As a result applicant was
forced to apply for a postponement of the matter on an urgent
basis.
Respondent opposed the application and filed a counter claim in which
he sought
inter
alia
primary
residence and care be awarded to him with reasonable contact awarded
to applicant under certain conditions ie the same rights
awarded to
applicant during the divorce, per the deed of settlement, but
reversed to him. On the day of ihe hearing, just before
the urgent
application could proceed on an opposed basis as arranged with the
registrar of this court, respondent agreed to a postponement.
Such
agreement was made an order of this court.
[6] In her founding
affidavit, applicant alleged that she had to take the minor children
as she was relocating to Namibia for better
living prospects. She
further averred that during the divorce proceedings the respondent
had agreed that she was a fit and proper
person to be the primary
care giver and that was still the case. Because she was living in
Luderitz she had to make provision for
the children’s schooling
in time for the commencement of the school year. She refuted all the
allegations made by the respondent
in his counter claim that she was
not a fit and proper person to be the primary care giver.
[7]
As indicated earlier on, based on the directive of this court, the
Family Advocate, Bloemfontein
2
compiled
a report supported by the psychologist who interviewed the family in
Namibia as well as a Counsellor. In his report, the
Family Advocate
in essence supported applicant’s view that she was the parent
who should continue to have primary care and
residence. The Family
Advocate, and all experts referred to in his report were all
ad
idem
that
applicant should remain the primary care giver. The children too were
asked for their view
3
and
they indicated their preference: To stay with the applicant
regardless of where she resided. The Family Advocate made detailed
recommendations with regard to respondent’s contact rights, how
and when such rights should be exercised; adding to the contact
rights already granted during the divorce. Respondent, based on the
report, subsequently withdrew his counterclaim.
[8]
South Africa (SA) has ratified the Hague Convention on the Civil
Aspects of International Child Abduction (1980) - see section
275
read with Schedule 2 to the Children’s Act 38 of 2005. One of
the objects of the Hague Convention is
‘
to
ensure that the rights of custody and access under the law of one
Contracting State are effectively respected in other Contracting
States’
4
.
Article 21 of the Hague Convention deals with rights of access-'an
application to make arrangements for organising or securing
the
effective exercise of rights of access may be presented to the
Central Authorities of the Contracting States in the same way
as an
application for the return of the child.’ The Central
Authorities of the Contracting States are obliged to cooperate
with
each other to
‘
promote
the peaceful enjoyment of access rights and the fulfilment of any
conditions to which to which the exercise of such rights
may be
subject’
5
(article
21 read with article 7). In a proper case, Central Authorities are
obliged
‘
to
make arrangements for organising or securing the effective exercise
of rights of access.’ (article 7(f)).
[9] In this case,
unfortunately, Namibia has not yet ratified the Hague Convention. As
a result there is no Namibian Central Authority
through which the
Family Advocate as the Central Authority in SA could apply for
assistance in investigating the wellbeing of the
children or, should
applicant ultimately attempt to thwart the exercise by respondent of
his contact rights in respect of the children,
to assist the
respondent in organising or securing the effective exercise of such
rights in Namibia. As a result, the Family Advocate
sought assistance
and co-operation of the International Social Services (ISS) in South
Africa to facilitate the process. This process
proved to be quite
cumbersome but a report was finally compiled and filed with this
court and the order set out in para 1 above
was granted.
[10] In terms of the
court order dated 8 December 2014, the consent given to applicant to
remove the children from South Africa
was only granted until 29
January 2015. The children were not returned to South Africa before
that date. Had Namibia ratified the
Hague Convention, the failure by
applicant to return the children would have constituted ‘wrongful
retention’ of the
children in terms of article 3 of the
Convention, viz retention in breach of respondent rights of custody’
under South African
law, being the law of the State in which the
children were habitually resident immediately prior to the wrongful
retention. Respondent
could then have applied to either the South
African Central Authority or the Namibian Central Authority for
assistance in securing
the return of the children. He could have
instituted Hague proceedings in Namibia for the return of the
children to South Africa.
[11]
In respect of the order I granted previously, in addition to what the
Family Advocate had recommended in respect of the contact
rights of
respondent, I deemed it necessary under paragraph 3.2 of the order to
include that
‘
respondent
should bear the travelling costs of the children to be with him
during the 2015 September school holidays.’ This
was so ordered
to enhance the enjoyment of respondent’s contact rights and to
enable him to make proper arrangements prior
to the commencement of
the school holidays. I am mentioning this because before this
judgment could be delivered, respondent filed
a Request for Reasons
notice in respect of this particular paragraph. In the event that
this paragraph is of no consequence to
respondent, as he would in any
event be ordinarily responsible for the children’s travelling
expenses when they visit him,
in terms of Rule 42 of the Superior
Courts Practice, the paragraph will be deleted in the amendment that
I will make in this regard.
I also take this opportunity to amend the
order in so far as paragraph 5 thereof is concerned. The paragraph
reads:
“
in
terms of article 21 read with article 7(f) of the Hague Convention on
the Civil Aspects of International Child Abduction, the
South African
Central Authority is directed to co-operate with the Namibian Central
Authority to promote the peaceful enjoyment
by the respondent of his
contact rights; to remove, as far as possible, all obstacles to the
exercise of such rights and, in a
proper case, to make arrangements
for organising or securing the effective exercise of such rights.”
The deletion of this
paragraph does not change the substance of the original order but it
is in line with the conclusion I have
come to under paragraph 10
above. The paragraph will obviously have no effect in any court or
agency in Namibia.
[12] Lastly, the
issue of costs. In cases of this nature, costs are usually resolved
by each party paying its own costs. I do not
see any reason to depart
from this general rule, despite the unwarranted allegations
respondent made about applicant in his quest
to protect his contact
rights. These allegations were probably the result of his desperation
in realising the impact of applicant’s
decision to prematurely
register the children in schools in Namibia before the Family
Advocate could conduct an investigation as
directed by this court.
Both parties’ seemingly unreasonable conduct is totally
understandable in the circumstances. Thus
the order I have made in
respect of costs.
[13] This case
should serve as a clear indication to the Namibian government that it
should seriously consider ratifying the Hague
Convention.
[14] In the result,
the order as amended set out in paragraph 1 of this judgment was
granted.
B. C. MOCUMIE, J
On behalf of the
applicant: Adv. Snellenburg
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On behalf of the
respondent: Adv. Pienaar
Instructed by:
McIntyre & Van
Der Post
BLOEMFONTEIN
1
The
parties concluded a Deed of Settlement in which all their rights and
responsibilities in respect of the minor children were
set out.
2
Advocate
L Holele, representing the Office of the Family Advocate.
3
In
terms of section 10 of the Children’s Act 38 of 2005, ‘every
child that is of such an age, maturity and stage of
development as to
be able to participate in any matter concerning the child has the
right to participate in an appropriate way
and views expressed by the
child must be given due consideration.’ This is line with
article 12 of the United Nations Convention
on the Rights of the
Child, which South Africa ratified in 1995, and article 4 of the
African Charter on the Rights and Welfare
of the Child, which South
Africa ratified in 2000.
4
Article
1 (b)
5
Article
21 read with article 7.